Mrs A-M Arthur v Department for Work and Pensions: 8000741/2024
JUDGMENT
[1]The claim of unlawful deduction from wages in respect of accrued holidays is out of time and the tribunal does not have jurisdiction to hear it.[2]The claim is therefore dismissed.REASONS
[1]This claim was for unlawful deduction from wages under section 23 of the Employment Rights Act 1996. The claimant alleged that she had not been paid in respect of accrued holidays as part of overtime payments running from an unspecified date in 2017.[2]A preliminary hearing was scheduled to determine whether the claim was out of time, and if so whether the time limit for presenting the claim should be extended to allow it to be decided on its merits. This was to take place by video.[3]The claimant’s last date of employment with the respondent was 2 August 2023 as stated in her claim form. The respondent agreed this date was correct. The claimant commenced early conciliation via ACAS on 5 April 2024 before presenting her claim on 30 May 2024. The claim was sisted (i.e. paused) to allow for a similar group of claims to be dealt with in the Manchester employment tribunal before being reactivated in early 2025 after all but one of those claims was withdrawn.[4]The respondent’s position as set out in its ET3 form was that the claimant, along with other employees, was paid on 30 June 2023 a sum in satisfaction of any right to holiday pay contained within overtime payments covering the period 1 April 2021 to 31 March 2023, and that from April 2023 accrued holidays were included in regular pay going forwards.[5]The respondent further submitted that a second lump sum payment was made to employees to cover a period from December 2017 to 31 March 2021, but only if the individual was in service on 31 August 2023. As the claimant left earlier that month she did not receive the payment. It said that it notified employees of this proposal on 10 January 2024 and the payments were made to eligible employees at the end of that month.[6]The respondent produced what it said was the claimant’s final payslip, dated 30 November 2023.[7]On the basis of the documents available before the hearing the claim was out of time as the latest date on which an unlawful deduction of any type could have been made from the claimant’s wages was 30 November 2023, the last date on which she was paid. That was more than three months before she began early conciliation. By the time she presented her claim it was out of time. In any event the claim would have been for pay between December 2017 and March 2021, since she was compensated for holidays after the later of those dates. It was therefore some three years out of time.[8]A tribunal has no jurisdiction to decide any claim which is submitted outside of the time limit for doing so. Various statutory exceptions to this exist. For a claim of unlawful deduction from wages, time can be extended if(i) it was not reasonably practicable for the claim to have been lodged on time, and(ii) if so, that the claim is presented within such further time that the tribunal considers reasonable. The onus falls on the claimant to establish that these circumstances exist.[9]The claimant emailed the tribunal clerk this morning to say that ‘I wish this tribunal to go ahead in my absence. Thank you.’ Her email contained no further details. The clerk telephoned her to ask her to clarify her position. She said that she had had a union representative but they had ceased to act for her and she did not want to proceed alone. She did not say that she wished the hearing to be postponed.[10]Ms Robertson joined the hearing. She confirmed details of the respondent’s position as above. She submitted that the claim was clearly time-barred even on the claimant’s own documents and that the onus was on her to justify why time should be extended. There was no material to support doing so.[11]On consideration of the position I decided to dismiss the claim on the basis that it is out of time and so outside of the tribunal’s jurisdiction. This is clearly the position based on the documents available, and there was nothing to suggest that the claim was presented within time. I considered whether there was any evidence to suggest that it was not reasonably practicable for the claim to be presented on time. There was no such evidence.[12]I considered separately whether, had the claimant not been able to raise the claim within time, it was reasonable for her to have presented it when she did. I was mindful of the fact that the respondent told its employees on 10 January 2024 that it would make a further back payment of holiday pay. However, the claimant contacted ACAS almost three months later, having at the time the benefit of a trade union representative. That would not have been a reasonable time to do so had there been justification for not raising the claim before 10 January 2024.[13]Ultimately, where a claim is presented out of time the onus is on the claimant to persuade the tribunal that time could be extended. The claimant chose not to provide any documents or oral submissions to assist in that consideration.[14]For the above reasons my decision was to dismiss the claim as being out of time.